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Traditional means of settling disputes usually involves giving young girl to family of perceived victim of crime.

By Wahida Paykan in Mazar-e-Sharif (ARR No. 317, 26-Mar-09)

Two-year-old Nilab sits on the floor, drawing with a stick. She is wearing a red dress and black shoes, her unruly curls falling in her eyes. Shy around strangers, she hides her face behind her big sister from time to time.

The toddler has no idea what awaits her: she has been traded away in baad, to make up for the sexual misconduct of her uncle.

Baad is a traditional means of settling disputes in Afghanistan, and usually involves giving a young girl to the family of the perceived victim of a crime.

"My uncle Jawad was found guilty of having unlawful sexual relations with Noria, my father's cousin," said Mariam, Nilab's 19-year-old sister, tears running down her face.

"Noria became pregnant, but her husband has been working in Iran for the past seven months. Noria's father-in-law accused Jawad of being the father, and the families agreed to settle the matter through the local jirga (council). The jirga decided that Nilab should be given to Noria's brother-in-law, who is only six years old. Everyone agreed."

Baad is seen as a way of avoiding more violent means of satisfying grudges, and many Afghans applaud the practice.

"Without baad, we would have conflict between the families, with murder and revenge," said Nadira, a member of the family who accepted Nilab. "Baad is a good thing. Killing and enmity are prohibited in Islam."

"This is a very good decision by the jirga," said her sister Sabera. "Peace has been restored to the two families. Their enmity has turned to friendship. The girl taken in baad will have all the rights of a family member, and will finally marry a son of this family, she will become a bride."

Nilab is lucky; she will be allowed to remain with her own family until she reaches puberty. In stricter cultures, she could have been taken immediately. In many cases, the family of the victim will take out its rage on the girl given in baad, as a way of exacting vengeance without starting an all-out war between two groups.

Baad is an ancient tradition in Afghanistan, dating back to the days when no central legal authority existed, and conflicts were settled through the tribal system.

Slowly the practice became widely accepted, even though there is no religious or legal basis for it. When a man kills, rapes, or has sexual relations with someone other than his wife, a local council can step in to mediate. Lesser offences can usually be settled by the exchange of money, perhaps a few sheep or a cow. But the standard penalty for a serious crime is for the offender's family to part with a girl, who is given to the victim's family.

Often the girl given in baad is little more than a slave; she can be beaten or mistreated, or even killed. Much domestic violence in Afghanistan can be traced back to the tradition of baad, according to human rights activists.

"Baad is a negative tradition with no legal or moral basis," said Judge Sayeed Mohammad Sami, head of the Afghan Independent Human Rights Commission for the north. "A human life can never be traded away. It will take a long time and much hard work to get rid of this terrible practice."

According to Judge Sami, 571 cases of violence had been recorded in the north over the past year. Out of these, eight were attributed to baad. However, he added, the number could be much higher, since many families do not report such incidents.

Baad is illegal, said Mah Gul Yamam, a legal expert at the Afghan Human Rights Organisation.

"According to the laws of Afghanistan, a perpetrator bears personal responsibility for his crimes," she said. "This responsibility cannot be transferred to others. But unfortunately, in Afghanistan, when a man commits a crime, it is the females that have to bear the punishment."

Baad is against the criminal code of Afghanistan, punishable by up to two years in jail, she explained. But unfortunately, no legal action can be taken unless the woman or girl who is given away makes a complaint. Females are often reluctant to initiate criminal proceedings against their relatives, and, indeed, can be physically coerced into complying with the demands of baad.

"There is a dysfunction in the law," said Mah Gul. "Baad must be recognised as a crime."

Afghanistan's legal system is plagued with corruption and inefficiency, and is in no condition to dispense justice. Despite the efforts of the international community, which has poured millions of dollars into judicial reform over the past seven years, many Afghans choose the traditional structures when things go wrong.

Tribal or jirga justice is swift and almost universally accepted - but it has the disadvantage of perpetuating many of the society's long-standing abuses against women.

Malaly Roshandil Usmani, head of the Women's Rights Advocacy Association, told IWPR that women whose rights have been violated are in no position to make a complaint.

"Organisations working in the field of women's rights should not have to wait for women to come to them," she said. "They need to find these women and work with them."

Many women do not know their rights, she explained, and still more are prevented from exercising those rights.

"Many women cannot read and write, and they have no information about the legal code or Sharia law," she said. "The misery of baad will continue until women are made aware of their rights."

Religious scholar Maulawi Rahman Rahmani told IWPR that baad should not be tolerated in Islam.

"The great majority of Afghanistan's population is Muslim," he said. "How can such a negative practice come into being?"

"It is a serious sin to give away another's life to escape punishment. It is the obligation of Islamic scholars to try and eliminate these unwanted traditions."

Nilab's neighbour, Fawzia, agrees.

"An innocent child should not be forced to bear the guilt of others," said Fawzia. "Everyone is responsible for his own crimes. Baad does not build peace, it keeps wounds open forever."